Starting Off on the Right Foot
It is surprisingly easy to jeopardize a successful mediation before the mediation even starts. Demanding a joint session can be risky. An attorney may want to appear as an advocate for his or her client, to show that the client is being zealously represented. That may help the lawyer’s relationship with the client, but it may jettison any chance of success at resolution of the dispute.
That’s especially true in cross-border mediations. Cultural cues and understandings are a bit more subtle but just as key in making sure all parties maintain a desire to reach a resolution. Here are some tips to making sure you don’t ruin the mediation before it has even started:
If a mediation is in person and involves people from another culture, find out ahead of time what is an appropriate greeting. For example, will shaking hands – something we take for granted in the U.S. – be the acceptable greeting? In some cultures the greeting is in the form of a bow. In other cultures shaking hands with someone of the opposite sex is forbidden. Besides creating an awkward moment, doing the wrong thing can be offensive.
Find out about any important business customs. In Asia, for example, the manner in which you present a business card may be just as important as having a card to present. And it is not just providing the card with two hands, as many have seen in films. An important aspect of this greeting is taking the time to look at the card and to acknowledge the information on the card. Likewise, seating a person in the appropriate location at a table may be an important sign of respect. If you’re the one arranging for the space, make sure you discuss seating ahead of the mediation.
Make sure you know of any physical needs of participants. Offering some self service coffee, tea and water may be customary in the United States, but in other places more may be expected. Attendees may have special dietary or medical needs, as well. Planning for these in advance of mediation shows consideration and will allow everyone to be comfortable, increasing the likelihood of success.
Set the tone with your appearance even virtually. In the new day of remote mediations, how you appear “on camera” sets a tone, just as it would in person. Certainly business attire is appropriate; but consider your background, as well. If you can blur the background or make sure it is a professional setting – not your kitchen – you show that you take this process seriously, that you and your clients are serious about resolving the dispute. If the mediation involves parties from another country with a very formal court system, this will be vital.
Help your client understand the opportunity that mediation presents and how it fits in the process of resolving the client’s dispute. If your client is from another country, make sure you explain the role of the mediator and the Judge and the difference between them. There are many countries where mediation is not offered as a form of dispute resolution, or mediation is limited to consumer or family issues. Mediation can be different in format and function. Helping your client understand what to expect will help your client feel confident, in control and focused on resolving the dispute instead of spending energy trying to figure out what’s happening.
Discuss your clients’ goals, concerns and expectations. Planning ahead of time and asking questions will best serve your clients and at least keep the door open to a possible amicable resolution.
Why Mediation? -- How Lawyers Can Help Clients Understand the Value of Mediation
Attorneys and clients often wonder why mediation is worth considering. The parties often have tried to resolve their dispute before involving legal counsel and the attorneys often have tried again before starting down the litigation path. Although many attorneys have seen the utility of mediation repeatedly, it can be hard to explain to clients why it might be worth the expense to nevertheless try for a mediated settlement. This post offers some tips that an attorney can offer:
The parties get to decide their own fate. They cannot be forced into any decision, so there is no risk of an adverse outcome the client does not want.
It offers a reality check on the risks of litigation. Having an independent mediator involved can help the parties get out of any communication challenges they have faced, without risking the attorney/client relationship.
Learn about the other party’s case. One can often get a sense of the other parties’ legal position without giving up too much of one’s own strategy through a mediation session. It’s simply a matter of asking questions and digging into the issues the other party and legal counsel raise. Showing interest in the other parties’ position not only increases the chances of successful mediation by better understanding what matters to the other party (and what doesn’t), but also allows one to better anticipate what the other party will focus on in any subsequent litigation if mediation fails. (Although mediations are confidential, an attorney and client can still factor into their strategy what they heard from the other party in a mediation.)
It offers a client a “day in court”. Clients often talk about how frustrating it is that for months after starting a lawsuit they really don’t get to tell their side of the story. Mediation can give a client his or her or its “day in court” without the drawn out process of litigation. The client has the opportunity to provide an account to the mediator of what’s in dispute and how the client was wronged in a direct way that even a trial doesn’t afford.
It is more likely to improve rather than damage the relationship between the parties. Parties that mediate are frequently able to avoid the damage to the relationship that litigation can cause. It is especially useful if the parties have any hope of future business together. They may be able to learn what went wrong—whether miscommunications or misunderstandings were a cause of the dispute. Moreover, instead of being asked to tell their side of the story in the extreme, they are afforded an opportunity to consider where they have common ground with their opponent and to consider “win/win” outcomes.
Mediation can save resources. It can cost much less than litigation. It avoids the drag on time of, and psychological wear and tear on, staff and executives to participate in depositions, discovery and trials. It saves on legal fees. It resolves the dispute more quickly and allows the parties to move forward instead of looking back. Parties sometimes fail to evaluate the opportunity costs of litigation, although those costs can be substantial. While focused on a trial (even during discovery), a variety of business opportunities could be missed.
Consider these statistics from the Department of Justice regarding the benefits of mediation (updated as of June 24, 2020).[1]
SUCCESS RATES 2017 Alone
Voluntary ADR Proceedings 75％ Resolved
Court-Ordered Proceedings 55% Resolved
QUANTIFIED BENEFITS OF ADR
Litigation or Discovery Expenses Saved $15,521,275
Days of Attorney/Staff Time Saved 13,886 Days
Months of Litigation Avoided 1,967 Months
DOJ SUPPORT ADR
Expenditures for Mediation Services $1,284,149
Number of New Cases Authorized for ADR Funding 502
[1] See: https://www.justice.gov/archives/olp/alternative-dispute-resolution-department-justice.
Use of Interpreters at Mediations
Parties come to a mediation with a history of misunderstandings in most cases. Misunderstandings are often the causes of the dispute. The last thing parties and their counsel want at a mediation is to further any misunderstandings or cause new ones. When the parties speak different languages, that risk increases.
Even if parties/counsel believe that they are fluent in another language, it is always wise to have an interpreter if the mediation is being conducted in another language. The parties and counsel should be concentrating on mediating, not on interpreting. The interpreter should be an official interpreter rather than a friend or colleague who knows the language. Terms used in legal disputes are often technical and/or legal; not everyone knows such terminology. Moreover, interpreting requires intense concentration and trained interpreters know when they need to take breaks and how to manage the process to sustain their performance throughout the mediation. A interpreter friend may also have difficulty keeping to the interpreter role – becoming caught up in the process of the mediation and forget to interpret.
Having a neutral interpreter also mitigates an interpreter putting his/her own spin on what is being communicated. A neutral interpreter has no interest in the outcome of the mediation and therefore is less likely, even inadvertently, to alter interpreted statements to favor one side or the other.
This also allows the party or lawyer who speaks both languages to more easily identify mistranslations. The official interpreter will not be familiar with the contours of the dispute, may not understand something that others do from context, or may not be familiar with legal or technical terms. Parties/counsel can speak up and try to explain the particulars to the interpreter. There is nothing wrong with doing that. Mediations are not “recorded” in any way – there is no court reporter or possibility that what is discussed in the mediation will become part of any record. Although getting the words right is important to facilitate the mediation, perfection is not a requirement.
If parties are going to use an interpreter, here are some tips:
Discuss the plan with the mediator and other parties. Typically in mediations interpreting would be serial rather than simultaneous. That means more time is needed to allow for repetition of any comments made to and from the person who requires the interpreter. Using an interpreter may also require added breaks, for the interpreter to maintain high quality interpretation.
Plan time to allow the interpreter to identify the interpreter’s needs. Pause to allow interpreting every few sentences and avoid interrupting one another so that one person’s comment can be translated before another thought from another person is raised.
Brief the interpreter on the background of the dispute and make sure the interpreter understands the confidential nature of the mediation. It may be appropriate to have the interpreter sign a confidentiality agreement, as well, if all potentially applicable law does not require the interpreter to keep the mediation confidential.
Lawyers Should Leave Their (& Their Clients’) Egos at the Door
Lawyers tend to be competitive by nature and never more so than when they are being zealous advocates for their clients. This personality trait may be productive and successful for a lawyer in some cultures, but not in all, and not when that competitive trait gets tangled up with one’s ego. It can easily get in the way of a successful mediation outcome for the lawyer’s client. More often, however, it is the client’s ego that gets in the way of a fruitful settlement. Too many times the challenges of a highly-contested mediation become more about a contest of egos than a search for a workable solution, thoughtful negotiation and a positive, timely result.
Lawyers should not forget it is their clients’ case, not theirs. They should not let their egos prevent them from recommending acceptance of an offer lower than originally proposed or from making an offer for more than they originally said was their “top dollar”, if it will ultimately lead to a settlement in the long term interest of their clients.
If it is the clients whose egos are preventing settlement, this is a very difficult and delicate situation for the lawyer. If the lawyer believes the clients are letting their egos get in the way of a favorable settlement—one that is in the clients’ best interest, the attorney should explain why it would be better to look at the situation as a business decision rather than a personal or emotional one. Pointing out the cost of depositions, experts, attorneys’ fees, motions, trial, or any interest that may accrue, as well as the emotional investment of continuing the dispute may enlighten the client. Even if it is constructive information, however, the client may become defensive and not listen. If the attorney is uncomfortable having this conversation with the client, it is often better to have the independent, neutral mediator raise these issues for the client and suggest that, although the mediator understands the clients’ position, it would be good to take a step back, take ego out of the equation, and have a renewed conversation with their attorney about settlement options, taking these realities into consideration.
It is often hard to close the door, and close the deal, with too many egos in the room.
Be sure your ego isn’t the one preventing a good result.
Context Matters – How to Avoid Missteps in Cross-Border Mediation
Sara Sandford and Lisa Savitt recently shared some of their tips for avoiding missteps in cross border mediation at the Union des Avocats International/International Association of Lawyers 30th World Forum of Mediation Centers conference held in Malaga, Spain. The interactive program focused on understanding the impact of cultural differences and legal systems on mediations. Lisa and Sara shared tips, including:
Working with clients to understand their and their attorneys’ expectations regarding the mediation style and format.
Preparing for the mediation by studying cultural differences among the countries of origin of the participants, which could impact:
Goals – solution/relationship
Attitudes – win/win or win/lose
Personal Styles – informal/formal
Communication Style – direct/indirect
Time Sensitivity – precise/casual
Trust – how it’s demonstrated
Emotionalism – high/low
Form of Agreement – specific/general
Agreement Process – bottom up/top down
Team Organization – one leader/consensus
Risk Taking – high/low
Format of Mediation – formal/informal
Developing strategies for how to help rebuild trust or confidence, when someone unwittingly disrupts the flow of mediation by a misstep.
In addition to knowing the issues and parties’ stated objectives, mediators have to understand the basic legal regimes of the matter being mediated. They also need to understand and plan for the conscious and unconscious expectations and attitudes brought to the table – particularly when there are substantial differences in how parties might approach dispute resolution and decision-making. Lisa and Sara explained how essential it is for mediators to help the parties anticipate these kinds of challenges in advance of a mediation so missteps don’t derail a mediation that could otherwise be successful.
Welcome to the Savvy Mediator
Welcome to our blog, “The Savvy Mediator”. We are delighted to announce the launch of this blog about mediation—one of our favorite topics. We want to share some of our knowledge with readers both about why you might choose mediation and how to make the most of mediation when you do.
We will offer tips that are universally relevant to mediation, whether local or global. We will also focus frequently on topics related to cross-border mediation, because we don’t see enough information online about that topic. Mediations involving people from different cultures and disputes in more than one country typically present unique challenges.
We welcome your comments, questions and requests for topics too, so please don’t hesitate to reach out to any of us!
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